Well, the premise of the constitutionality of libel law -- whether
under an actual malice standard, a negligence standard, or a (possibly
permissible) strict liability standard -- is that false statements of fact lack
constitutional value; the mens rea standard is there chiefly to make sure that
libel law doesn't unduly deter true statements of fact.
Here, we don't have false statements of fact. That the emotional
distress tort requires recklessness or purpose as to another matter (the
tendency of the speech to create severe emotional distress) doesn't validate it
by analogy to libel law -- libel law asks not about mental state in the
abstract, but about the mental state as to the *false statement of fact*.
Again, if one wants to argue for an exception for speech, whether
opinion, true statement, or false statement, that inflicts severe emotional
distress -- or just does so near a funeral, or just does so with regard to a
recently dead person, or what have you -- that's fine, and the question would
then be what the exact boundaries of the exception are, and how the exception
can be defended. But libel law does not offer a helpful analogy.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 12:58 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> I think Eugene has oversimplified defamation law here. We hold some
> tortfeasors
> to an actual malice standard while others are held to more lax standard. So
> while
> false statements of fact are a constant minimum element of proof (because they
> lack value AND are very likely to cause harm to reputation) the tort
> liability is
> determined according to the role played by the speaker and the role played by
> the
> recipient of the message. And in private person victim cases a more onerous
> standard than actual malice can be applied to the speaker.
> In these cases the tort must be intentional. So you have already limited
> the
> impact if the tort considerably. I think when one adds that funerals and
> death are
> instances where the victim is vulnerable and deserving of protection the
> argument
> for liability in these cases is strong
>
> Marci
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